Willet v. Equitable Insurance

10 Abb. Pr. 193

• Court: New York Supreme Court
• Decided: December 15, 1859
• Status: Published

Opinion

James, J.

This cause came on for trial by the court without a jury, a jury being expressly waived by the parties, and after hearing the proofs of the parties, and the argument of counsel, I hereby report the following facts, with my conclusions of law thereon:

1. The plaintiff is the sheriff of the city and county of New York.

2. The defendants are a foreign corporation with an agency in New Jersey, and none in the State of New York.

" 3. Cooke & Barton are non-residents of this State, and were indebted to Appleton & Co., of the city of New York.

4. The defendants are, and were in January, 1858, indebted to Cooke & Barton for a loss on a policy of insurance amounting to $5000.

5. On the 25th day of January, 1858, said Appleton & Co. commenced an action against said Cooke & Barton in the Supreme Court of this State by summons and attachment; the said sheriff by virtue of said attachment claimed to have seized and taken thereof the said debt due by the defendants to said Cook & Barton; that said seizure was made by delivering to the agent of defendants, resident in New Jersey, while temporarily in the city of New York, a certified copy of said attachment, with a notice of the property levied upon.

6. The summons and complaint was only served by publication, and such proceedings were thereupon had; that on the 17th day of May, 1858, the said Appleton & Co. recovered judgment in the action against said Cooke & Barton for $3309.91; that no property other than the claim due from defendants was seized under said attachment, and that the judgment recovered remains wholly unpaid.

7. That previous to the copy of this attachment and notice being left with the said agent of the defendants, certified copies of three other attachments against said Cooke & Barton had been left with him by the plaintiff as sheriff, one for $1240, another for $1613.39, and the third for $250, with notice that said claim was levied upon.

8. It was not shown that judgment was ever perfected in either of said three attachments.

9. The indebtedness from the defendants to Cooke & Barton at the service of the attachments was $5000, and the interest since is $671, making in all, at this date, $5671.

10. That the amount due upon the judgment in favor of Appleton & Co. is $3681.91.

From these facts, my conclusion's of law are:

1. That the plaintiff acquired no right to, or interest in, the debt due from The Equitable Fire Insurance Company, to Cooke & Barton, under, through, or by virtue of the warrant of attachment in favor of Appleton & Co. against Cooke & Barton, issued and delivered to him.

2. That the said debt was not property, or a debt within this State, só as to be reached by said attachment.

3. I therefore order the complaint to be dismissed, and judgment for the defendants, with costs of the action.